The Employee Free Choice Act of 2009 (EFCA), also known as the
"card check" bill, has been reintro­duced in Congress.[3] The
EFCA would fundamentally change the nature of the relationship
between unions, employers, and employees. Professor Richard Epstein
of the University of Chicago School of Law calls the EFCA "the most
transformative piece of labor legisla­tion to come before
Congress since the enactment of the National Labor Relations Act of
1935 (NLRA)."[4]

The EFCA would destroy the underpinnings of the National Labor
Relations Act, which established a structured system in which
unions and employers- not the government-would negotiate the terms
and conditions of their collective bargaining agreements. Section 3
of the EFCA mandates that if the parties cannot agree to a contract
within 130 days after a union is first recognized, an arbitration
panel estab­lished by the Federal Mediation and Conciliation
Ser­vice will be able to impose the terms and conditions of a
collective bargaining agreement that is "binding upon the parties
for a period of 2 years." As the Supreme Court has said:

[The object of the NLRA] was not to allow governmental
regulation of the terms and conditions of employment, but rather to
ensure that employers and their employees could work together to
establish mutually satisfactory conditions.... [I]t was recognized
from the beginning that agreement might in some case be impossible,
and it was never intended that the Government would...become a
party to the negotiations and impose its own views of a desirable
settlement.[5]

But it is the EFCA's effective elimination of the secret ballot
in union elections that is its most shocking provision, since it
creates ideal condi­tions for individuals to be subjected to
intimida­tion, threats, and coercion. The secret ballot was
implemented to prevent these ills not only in union elections, but
in all elections. The secret-ballot election was one of the
"central pillars of the original NLRA" that was intended "to
introduce a system of union democracy whereby unions could only
obtain the rights of exclusive representation for firms if they
could prevail in an election held by secret ballot."[6]

This paper will discuss the election change, not the serious
constitutional and property rights issues arising in the mandatory
arbitration provision.[7]

Development of the Secret Ballot in
Political Elections

The secret ballot that most modern democracies, including the
United States, take for granted today was first widely used in
Australia in 1856. It was introduced by South Australian Electoral
Commis­sioner William R. Boothby because the traditional public
process of voice votes "made the voter vul­nerable to both
bribery and intimidation."[8] England adopted the secret ballot in 1872
after the Queen urged that the conduct of elections be examined by
Parliament and "further guaranties adopted for pro­moting their
tranquility, purity and freedom."[9]

The secret ballot began to be adopted in this country after 1888
to counter widespread instances of bribery and intimidation of
voters. In fact, the 1888 presidential election is considered to
have been "one of the most corrupt in American his­tory."[10]
This after the notorious election of 1884, in which New York
Governor Grover Cleveland won a narrow victory over Republican
James G. Blaine, polling 4.876 million votes (48.5 percent) to
Blaine's 4.852 million (48.26 percent), although there was a wider
margin in the electoral college: 219 votes to 182. Cleveland won
despite Blaine's having generated the slogan "Ma, Ma, Where's my
pa? Gone to the White House, Ha! Ha! Ha!" against Cleveland based
on the accusation that Cleveland had fathered an illegitimate
child.[11] The election was so close that a "mere
600 votes in crucial New York would have thrown the election to
Blaine."[12]

New York, of course, was the home of Tammany Hall, probably the
most efficient and ruthless vote fraud machine in the history of
American elections. Even after Boss William Marcy Tweed's fall from
power, Tammany Hall continued to manufacture votes, "especially
during the zenith of its power in the second half of the nineteenth
century."[13] Since there were no secret ballots,
"Tammany fixers could ensure that voters would cast ballots as
prom­ised."[14] Manufacturing 600 fraudulent votes in New
York through bribery, intimidation, or out­right fraud was
something Tammany Hall could have done easily, given its prior
record and the lack of a secret ballot.[15]

Charges of fraud also enveloped the 1888 elec­tion when
Benjamin Harrison challenged incum­bent Grover Cleveland.
Harrison lost the popular vote by about 100,000 votes but won the
electoral college by a margin of 233 to 168.[16] Harrison won his
home state of Indiana by only 2,376 votes. Indiana had "a notorious
reputation in the annals of electoral corruption"[17]and in fact was
infamous "for the buying and selling of votes."[18] This was
particularly noticed during the 1888 election when a circular from
a Republican national committee­man, W. W. Dudley, "instructing
Indiana party lead­ers to make sure that purchased voters cast
GOP ballots" was publicized.[19] GOP Chairman Matt Quay
said that Harrison never knew "how close a number of men were
compelled to approach the gates of the penitentiary to make him
President."[20]

In 1888, Louisville, Kentucky, which had experi­enced "a
series of fraudulent city elections," became the first municipality
in the nation to adopt the secret ballot after a state
representative read an arti­cle on the new secret ballot being
used in Austra­lia.[21] Massachusetts became the first state to
adopt it that same year.[22] The secret ballot spread quickly as other
state legislatures implemented it and former President Grover
Cleveland supported its passage, calling for citizens to "restore
the purity of their suffrage."[23] In 1889, nine states
implemented the secret ballot-including Indiana. By the time of the
1892 presidential election, "citizens in 38 states voted by secret
ballot."[24]

Over the past 120 years, the secret ballot has become the
bedrock of our democratic election process in the United States, as
well as in those of numerous other democracies around the world.
Even the U.N.'s Universal Declaration of Human Rights recognizes
the importance of periodic and genuine elections "by secret
vote."[25]

Any proposal to eliminate the secret ballot in our political
elections would rightly be met with pro­tests and outrage at
the very concept of taking away such an important guarantee of an
individual citi­zen's freedom of choice. Vote buying loses its
appeal when the vote buyer cannot be sure that an individual votes
the way he was paid to vote. The ability to cast a vote without
fear was also one of the major reasons for adoption of the secret
ballot, because "it would protect [voters]...against
intimi­dation and coercion."[26]

Yet a return to that environment is exactly what is being
proposed for union elections in the Employee Free Choice Act, a
bill that represents a radical departure from democratic ideals. As
the Buffalo News opined, "[m]ore than most people, members
of Congress should be publicly devoted to the concept of the secret
ballot...[the] demo­cratic act upon which this county is
predicated. Without it, everything else dies."[27]

The Secret Ballot in Union
Elections

The provisions for secret ballots in union repre­sentation
elections are outlined in Section 9 of the National Labor Relations
Act, codified at 29 U.S.C. §159 and first passed in 1935. The
original lan­guage stated that the National Labor Relations
Board (NLRB) could provide for "a secret ballot of employees, or
utilize any other suitable method to ascertin [sic] such
representatives."[28]

This provision was amended by the Taft-Hartley Act of 1947 to
delete the "other suitable method" language after Congress found
that "the American workingman...has been cajoled, coerced,
intimi­dated, and on many occasions beaten up, in the name of
the splendid aims set forth in section 1 of the National Labor
Relations Act."[29] Thus, the right of employees to a secret
ballot has been in exist­ence for over 60 years.

In essence, unions first obtain authorization cards signed by
employees indicating their approval for union representation (thus
the term "card check"). Once the union files a petition with the
NLRB indicating that it has the support of a "substantial number of
employees" who "wish to be represented for collective bargaining,"
the Board is charged with investigating the petition.[30] If
the Board determines that a question of union repre­sentation
exists, "it shall direct an election by secret ballot and shall
certify the results thereof." Such an election can be requested
only once every 12 months.[31] In essence, the NLRB will conduct a
secret-ballot election if at least 30 percent of employees indicate
support for a union.[32]

The median time for conducting elections in 2007 was only 39
days from the filing of the peti­tion-little more than one
month.[33] The NLRB conducted 1,905 "conclusive
representation elec­tions" in cases closed in fiscal 2007, and
unions won 55.7 percent of those elections.[34]

If an employer does not contest the union's asser­tion of
representation through card checks, the union can be instituted in
the workplace without an election. But an employer can refuse to
recognize a union based solely on card checks and can insist on a
secret-ballot election.[35] However, the decertifica­tion
of union representation at the request of employees can be
accomplished only through a secret ballot.[36] When faced with
decertification, unions have taken the position that "elections are
the preferred means of establishing whether a union has the support
of a majority of the employees."[37]

Through these provisions, as a former member of the NLRB has
said, the National Labor Relations Act "establishes a system of
industrial democracy that is similar in many respects to our system
of political democracy. At the heart of the Act is the secret
ballot election process administered by the National Labor
Relations Board."[38] The basic premise is that workers express
their true wishes based on information from all sides of the issue.
When an election is conducted, the NLRB brings in "portable voting
booths, ballots, and a ballot box."[39] No supervisors or managers
from the employer and no campaigning are allowed in the voting
area, although designated employee observ­ers may be
present.

Under 29 U.S.C. §160, the NLRB can prosecute any employer
who is engaging in an unfair labor practice-and that includes
interfering with the election process. In fact, the Supreme Court
has confirmed that the NLRB can recognize a union based solely on
union authorization cards if an employer has committed unfair labor
practices "that tend to undermine the union's majority and make a
fair election an unlikely possibility." [40] However, "secret elections
are generally the most satisfac­tory-indeed the
preferred-method of ascertain­ing whether a union has majority
support."[41]

Disenfranchising Workers to Facilitate
Union Membership

Section 2 of the EFCA eliminates the right to a secret ballot
provided in 29 U.S.C. §159(c). It amends part (c) by providing
that if a union pre­sents a petition to the NLRB "alleging that
a major­ity of employees" want to be represented by the union,
"the Board shall not direct an election but shall certify the
individual or labor organization as the representative." In other
words, if 50 percent of the workforce plus one employee sign union
authorization cards, the NLRB must certify the union without any
actual election.[42]

However, if a group of employees become unhappy with their union
representation and want to get rid of the union, they cannot simply
collect authorization cards. Decertification of the union at the
request of employees can still be accomplished only through
an election held by secret ballot.

The coercion and intimidation that an employee can face from a
union and its supporters for refus­ing to sign an authorization
card was recognized by the Supreme Court in National Labor
Relations Board v. Savair Manufacturing Company:

If we respect, as we must, the statutory right of employees to
resist efforts to unionize a plant, we cannot assume that unions
exercising powers are wholly benign towards their antagonists
whether they be nonunion protagonists or the employer. The failure
to sign a recognition slip may well seem ominous to nonunionists
who fear that if they do not sign they will face a wrathful union
regime, should the union win. That influence may well have had a
decisive impact in this case where a change of one vote would have
changed the result.[43]

As the Court of Appeals for the District of Columbia has said,
such "'cards are not the func­tional equivalent of a
certification election' and elections have a 'preferred status' as
a means of determining representation."[44] The court also pointed out
that the NLRB has concluded that card checks give a "greater
opportunity for coercion of employees by union organizers, as
compared with a secret ballot"; that "[a]rguably, employees may
misunderstand the import of signing an authoriza­tion card,
because of misreading, failure to read, or union
misrepresentation"; and that "[w]hen cards are used, the employer
has no opportunity to speak to his employees concerning their
determination to have union representation."[45]

The Court of Appeals for the Fourth Circuit con­cluded that
it would "be difficult to imagine a more unreliable method of
ascertaining the real wishes of employees than a 'card check,'
unless it were an employer's request for an open show of hands."[46]
The Second Circuit Court of Appeals said that "it is beyond dispute
that [a] secret election is a more accurate reflection of the
employees' true desires than a check of authorization cards
collected at the behest of a union organizer."[47] When a union
obtains a majority of authorization cards, that by itself "has
little significance" because "[w]orkers sometimes sign union
authorization cards not because they intend to vote for the union
in the election but to avoid offending the person who asks them to
sign, often a fellow worker, or simply to get the person off their
back, since signing com­mits the worker to nothing."[48]

A former union organizer for UNITE HERE, a union that represents
employees in the textile, lodging, food-service, and manufacturing
indus­tries, testified in 2007 about the "disgraceful
prac­tices" that unions use to obtain card checks from
employees.[49] Those manipulative tactics included:

A "blitz" in which "teams of two or more orga­nizers" go to
the homes of employees, most of whom have no idea there is a union
campaign underway, and "use the element of surprise to get 'into
the door.'" Usually, when someone signed a card, "it had nothing to
do with whether a worker was satisfied with the job or felt they
were treated fairly by his or her boss.... [M]ost often it was the
skill of the orga­nizer to create issues from information the
orga­nizer had extracted from the worker during the 'probe'
state of the house call."

Manipulating the size of the group of workers they were
supposedly organizing "after the drive was finished" if required to
reduce the number of cards needed to obtain a majority "regardless
of [the employees'] level of union support."[50]

The former organizer admitted that he knew "many workers who
later, upon reflection, knew that they had been manipulated and
asked for their card to be returned to them." But the union's
strat­egy was "never to return or destroy such cards, but to
include them in the official count towards the majority." That is
why he concluded that "the num­ber of cards that were signed
had less to do with support for the union" and more to do with the
tac­tics of the organizers. This was consistent with the actual
results from "secret ballot elections that are conducted in which
workers are able to vote and make their final decision free from
manipulation, intimidation or pressure tactics."[51]

Another former union organizer for the United Food and
Commercial Workers local in Indianapo­lis confirms that
testimony. His experience obtain­ing card checks was that you
ended up with "an employee who doesn't understand what they're
signing, doesn't understand the ramifications of that transaction,
and yet it costs them nothing to give that person that signature
and get them to go away or leave them alone."[52]

The same individual also points out that the cur­rent NLRB
election process weeds out the "bad union organizers" who are
willing to lie, intimidate, or threaten employees to get their
signatures on card checks because cards obtained through such means
will not "stick" when you have a secret-bal­lot election where
the employee knows he can vote his conscience without the union
organizer know­ing what he did. But the card check system will
encourage the "organizer that wants to lie to [employees] and tell
them blatant falsehoods, gets the card signed and gets out the
door. Understand, there is no right of rescission on that card....
[Y]ou can't get that card back."[53] The organizers who bring
in the most cards, no matter how they do it, will be the ones who
get promoted within the union lead­ership, and that will not be
good "for the labor movement" because the decision-makers will end
up "being the most unethical" members of the union.[54]

The National Institute for Labor Relations Research has
collected thousands of reports of union violence involving both
property damage and personal injury, only 3 percent of which have
led to arrest and conviction. Unfortunately, federal law
enforcement has been limited in trying to stop such incidents
because of a prior Supreme Court decision holding that unions can
engage in vio­lence, intimidation, and coercion as long as "the
use of force [is] to achieve legitimate collective-bar­gaining
demands."[55]

In fiscal 2007, 5,992 charges were filed with the NLRB against
unions, and 84.4 percent alleged ille­gal restraint and
coercion of employees. The over­whelming majority of the
complaints (82.8 percent) were filed by individuals, while other
unions filed at least 90 such charges.[56]

All of these reports show that union organizers have engaged in
coercion, deception, and other forms of manipulation. Under current
law, these tactics can get them an election, but they are not
tactics that can be used effectively during the
elec­tion when employees can cast a secret ballot in an
independent process. Because unions could estab­lish union
representation through a system that allows them to know exactly
how every employee is voting and therefore take steps against
workers who refuse to agree to authorize the union, the changes in
the National Labor Relations Act made by the EFCA would provide
greater opportunities for union organizers to engage in
intimidation, coercion, and manipulation.

It would also encourage the outright forgery of signatures on
card checks. Employers cannot inter­rogate the employees even
if they suspect forgery (or intimidation), or they will be
committing an unfair labor practice. The NLRB will not investigate
a complaint without evidence that the employer is foreclosed from
obtaining. All the NLRB does when it receives cards with signatures
from a union is to "compare the names on the cards with the names
on the [employee] list, and there's no process for evaluating the
authenticity of the signature." There­fore, it is unlikely that
such fraud would ever be discovered.[57]

Unlike the current process where a neutral third party (the
NLRB) conducts an independent elec­tion, the new system under
the EFCA would put the candidate in charge of conducting the
election, including collecting all of the "ballots." There would
also be no observers present to watch the behavior of union
representatives. Every state guar­antees the right of
candidates and political parties to have observers in polling
places because it is a fundamental assumption that transparency is
the best guarantee of a fair and secure election. The EFCA would
destroy such transparency.

The tactics used by union organizers described above are
strikingly similar to illegal conduct engaged in by some political
campaigns to obtain absentee ballots from voters.[58] They send
cam­paign workers to residences to pressure voters into
applying for absentee ballots, even when the voters do not need or
want one. They come back when the absentee ballots arrive in the
mail, making sure the voters vote the "right" way on the ballots,
some­times marking the ballots for them, and then taking the
ballots for delivery to election officials.

The EFCA would legalize, in the union context, conduct that is
illegal in political elections, includ­ing allowing the union
to campaign for the vote as the voter is "voting" and then taking
charge of the "ballot." Every state prohibits electioneering inside
and close to polling locations precisely to avoid manipulation and
intimidation of voters when they are casting their ballots; yet
that is exactly what the EFCA would legalize.

Imagine also a situation in which "the challenger in a political
election could campaign and poll the electorate without the
incumbent's knowledge"[59] and obtain votes while the incumbent does
not even know there is an election going on. The EFCA creates that
situation for employers: An election for union representation could
be over before the employer (or employees known to be hostile to a
union) even knows it is happening. As an opinion article in The
Wall Street Journal said, "[t]here is simply no legitimate
government interest in pro­moting unionization that justifies a
clandestine organizing campaign which denies all speech rights to
the unions' adversaries."[60]

The basic unfairness of this is so obvious that this type of
EFCA system, if proposed for our political elections, would
certainly raise serious constitutional questions about the
fundamental rights to free speech and a fair election process. Even
if the constitutional requirements are not the same here, it is no
less outrageous for union repre­sentation elections.

EFCA supporters are not always against secret ballots, however.
One of the most outrageous hypocrisies of the push for passage of
the EFCA is a letter sent by a number of its original sponsors to
the Mexican Junta Board of Conciliation and Arbi­tration in
2001. Representative George Miller (CA- 7), the EFCA's chief
sponsor in the House, as well as other cosponsors, urged the use of
"the secret ballot in all union recognition elections" in Mexico.
This is because "the secret ballot is absolutely nec­essary in
order to ensure that workers are not intimidated into voting for a
union they might not otherwise choose." In fact, it is the use of
the secret ballot in such elections that "will help bring real
democracy to the Mexican workplace."[61] Regretta­bly, the
sponsors of this bill do not seem to want the same protection for
American workers that they have acknowledged is "absolutely
necessary" to ensure that workers in other countries are not
intimidated.

Similarly, former Congresswoman Hilda Solis, President Obama's
new Secretary of Labor, who was also a sponsor of the EFCA, wrote a
letter several years ago to Representative Joe Baca objecting to
his election as head of the Congressional Hispanic Caucus because
it had not been held by secret bal­lot.[62] Jim Hoffa,
president of the International Brotherhood of Teamsters, in
praising the sponsors of the EFCA, called elections "divisive" and
said that the secret ballot is not "a basic tenet of
democracy."[63]

Of course, the Teamsters do not quite have that attitude toward
their own internal elections. Their constitution requires
that all elections for officers "shall be conducted by secret
ballot."[64] Delegates to conventions where officers
are elected must also "be chosen by secret ballot"-the rules
governing the delegate elections must "be designed to ensure a
fair, free, and democratic election."[65] In other words, Hoffa does
not support the basic procedural protections to assure that union
representation elections are "fair, free, and democratic," just his
own elections to lead his union.

Conclusion

As the New York Herald said in 1888 when the
secret-ballot reform movement was sweeping the nation, the only
people against using a secret ballot were "the leaders and
managers, whose power depends upon their successes in manipulating
the ballot so that the suffrage will express, not the will of the
people, but the success of their schemes."[66] What the New
York Herald said 121 years ago about the opponents of the
secret ballot holds true today for supporters of the EFCA.

The only reason to eliminate the secret ballot in union
elections is to give union leaders and man­agers the power to
manipulate individual workers to guarantee the success of the union
and not to reflect the true choices of the employees. The fact that
the requirement for a secret ballot for decerti­fication of a
union remains unchanged by the EFCA shows the bad faith of the
supporters of this legislation. In fact, AFL-CIO President John
Sweeney's claims that card check is needed "to restore working
people's freedom to make their own choice to join a union" is
nonsensical: It would do the exact opposite by permitting that
freedom to be coerced away.[67]

The Employee Free Choice Act represents a betrayal of the hard
work, personal sacrifices, and progress that has been made over the
past 120 years to secure the voting rights of Americans, from the
implementation of the secret ballot beginning in 1888 to the
passage of the National Labor Relations Act in 1935 to the ballot
protections in the Taft- Hartley Act of 1947. It is as if, instead
of having their current election process that protects the
inde­pendence and privacy of every voter, New Yorkers decided
to reinstitute the Tammany Hall machine with all of its
accompanying intimidation, coercion, fraud, and manipulation. The
last thing American workers need is a 21st century Tammany Hall in
the shops, factories, and offices where they work.

Hans A. von Spakovsky
is a Legal Scholar in the Center for Legal and Judicial Studies at
The Heritage Foundation and a former Commissioner on the Federal
Election Commission.

[2]See Tracy Campbell, Deliver the Vote: A
History of Election Fraud, an American Political Tradition
1742-2004 97 (2005).

[3]Employee Free Choice Act of 2009, H.R. 1409/S.
560, 111th Cong. (2009). The bill was previously introduced as the
Employee Free Choice Act of 2007, H.R. 800/S. 1041, 110th Cong.
(2007). Although the EFCA passed the House of Rep­resentatives
by a vote of 241 to 185, it was stopped in the Senate in June 2007
after cloture was not invoked in a vote of 51 to 48.

[19]Id. Dudley instructed local leaders in
Indiana to "Divide the floaters [voters] into blocks of five, and
put a trusted man with necessary funds in charge," being sure to
"make him responsible that none get away and all vote our ticket."
See S.J. Acker­man, The Vote That Failed,
Smithsonian Magazine, Nov. 1998.

[51]Id. Jason added that the "promises
made by organizers at a worker's house had little to do with how
the union actually functions." Organizers also trained workers to
provoke unfair Labor practices in order to coerce an agreement from
the employer to accept card checks and not insist on a secret
ballot election.